Why a ‘Drone Court’ Won’t Work

Feb. 19 (Bloomberg) -- President Barack Obama’s drone war
is in danger of becoming an Abu Ghraib-style public-relations
nightmare, drawing criticism at home from left and right (and,
it seems, even many U.S. troops), spurring angry protests in
Pakistan and Yemen, and becoming a recruiting tool for al-Qaeda.

Hence the interest in putting the program under some sort
of judicial scrutiny. Unfortunately, as good as that idea
sounds, it runs into insurmountable practical and constitutional
hurdles.

As loosely proposed by Senator Angus King of Maine at John
Brennan’s confirmation hearings to lead the Central Intelligence
Agency, the U.S. could create a system similar to that involving
the Foreign Intelligence Surveillance Act, under which a secret
court hears government warrant requests for electronic
surveillance of suspected foreign intelligence agents in the
U.S.

Given the ticking-time-bomb nature of drone strikes,
seeking judicial approval for an individual strike is
impractical. More likely, a judge would have to sign off on
adding an individual to the administration’s “kill list” of
targets. To get approval, the administration would be obligated
to make a case that the person is an imminent threat and that
capture wouldn’t be possible. (It’s unclear whether the protocol
would apply to all targeted people or just to U.S. citizens such
as Anwar al-Awlaki.)

Such a system would ostensibly have two benefits:
increasing the legitimacy of the drone war and placing a check
on the executive branch’s power to decide life and death. On
closer examination, both advantages prove illusory.

First, few outraged Pakistanis would be assuaged by the
distinction of judicial scrutiny, and civil libertarians would
point out that the target is never given a chance to make a case
before the judge. This lack of an “adversarial setting” for
the subject might be defensible in the case of FISA warrants,
but the stakes here are far higher than a simple wiretap.

As for the balance of powers, that is where we dive into
constitutional hot water. Constitutional scholars agree that the
president is sworn to use his “defensive power” to protect the
U.S. and its citizens from any serious threat, and nothing in
the Constitution gives Congress or the judiciary a right to stay
his hand. It also presents a slippery slope: If a judge can call
off a drone strike, can he also nix a raid such as the one that
killed Osama bin Laden? If the other branches want to scrutinize
the president’s national security decisions in this way, they
can only do so retrospectively.

There is also a human problem: Few judges would be eager to
find themselves in this role. “That’s not the business of
judges,” James Robinson, a former federal appeals judge, told
the Washington Post, “to sign a death warrant for somebody who
is on foreign soil.” Those who did would face such tremendous
pressure to side with the government that the process would
probably become a rubber stamp. And why exactly do we think a
judge is any better suited to discerning terrorist threats than
senior executive branch officials?

There is an alternative, albeit a somewhat unsatisfying
one: Congress could create a “cause of action” that would give
the families of those killed the ability to seek damages.
Clearly, no amount of money is going to make up for a wrongful
death. But, as Stephen I. Vladeck of American University’s law
school points out, the threat of potential liability might make
an administration that much more careful in deciding both the
imminence of the threat and the feasibility of capture as an
alternative. Although any suit would probably have to be heard
in secret for national-security reasons, it would afford a layer
of judicial scrutiny to government actions, and would allow a
lawyer to make an adversarial case on behalf of the target.

This sort of ex post facto accountability wouldn’t end the
controversy over drone attacks. Nor would it substitute for
greater transparency on the part of the administration toward
the public and the relevant congressional committees. For an
administration that’s slowly losing the hearts-and-minds battle,
however, such trials would provide a bit of much-needed
legitimacy.